Court race spat focuses on flunked test

AUSTIN -- A Republican runoff fight for a seat on Texas' highest criminal court has taken a new twist with criticism being cast at a candidate who flunked the criminal law certification exam.

Judicial races usually go unnoticed, but this flap is highlighting an otherwise quiet runoff contest for the Texas Court of Criminal Appeals, the court perhaps most famous for its review of death-penalty cases.

Judge Ray Wheless, formerly a judge on the Collin County District Court, did not pass the certification exam in criminal trial law in 2007, according to public records.

He said in a 2009 application for his current job as a state criminal-court district judge that he failed the exam because he was selling his home in the months prior and "took passing the exam for granted."

Wheless, who is still not certified in criminal law, is facing Harris County State District Judge Mary Lou Keel, a criminal-court judge who is certified, in the May 24 runoff for a seat on the high court.

In the March 1 primary, Keel received 39 percent of the vote to Wheless' 35 percent.

The winner will face incumbent Judge Lawrence Myers in the November general election. Myers, who has served on the court since 1992, switched from being a Republican to a Democrat since the last election -- making him the only Democrat to currently hold statewide office and giving him slim chances for reelection.

Both candidates have received a slew of endorsements.

Wheless has the support of state Sen. Van Taylor, state Reps. Jodie Laudenberg and Bryan Hughes, and Tom Pauken, former chair of the Republican Party of Texas, among others. Keel has been endorsed by former state Supreme Court Chief Justice Tom Phillips, Harris County Commissioner Steve Radack, retired Harris County District Attorney John B. Holmes,among others, as well as several major newspapers across the state.

There is no requirement that judges hold certain board certifications. Five of the nine judges on the court are certified in criminal law, state records show.

Wheless, who is double-board certified in civil law and personal injury law, said he does not think a judge must be certified in a certain area to be a qualified member of the court.

"There are lots of people that are serve on our courts, that are great lawyers, also that are not board certified," Wheless said."Your length of practice ... is sufficient proof that you are qualified."Wheless has been an attorney for more than 35 years.

In an interview with the Houston Chronicle, Keel said failing a certification exam makes Wheless unqualified in criminal law.

"It's one thing to have never taken the test and have plausible deniability," she said. "He has demonstrated that he is incompetent in criminal law."

Edward Mallett, former president of the National Criminal Defense Lawyers Association, agreed that failing the exam is more indicative.

"Passing the certification shows a reasonable level of competence, but you don't have to pass the test to be competent," Mallett said. "If you can't pass the certification exam, you better take it a second time or go into another line of work."

Samantha Ketterer is a reporter on the Houston Chronicle’s breaking news team. She joined the staff in 2018 after covering tourism and Galveston City Hall for The Galveston County Daily News.

Samantha graduated from the University of Texas at Austin’s School of Journalism, where she started her reporting career working for The Daily Texan. She later interned for the Houston Chronicle’s metro desk and Austin bureau and was a reporting fellow for the Dallas Morning News’ state bureau.